Court upholds impounded car, gun charge

ALBANY -- New York State Police can impound a borrowed car when the driver is arrested at a traffic stop instead of letting a licensed passenger drive it away, New York's top court ruled Monday.

The Court of Appeals upheld Samuel Walker's conviction and prison sentence of 3 1/2 years for the handgun found on the floorboard when the car was searched for inventory.

He was stopped in October 2009 in Buffalo, driving his sister's car. The trooper said his passenger, later identified as Walker's girlfriend, wasn't wearing a seatbelt.

Walker was initially arrested on a charge of misdemeanor aggravated unlicensed driving since his license was revoked because of an insurance lapse.

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The court unanimously rejected Walker's argument that the impoundment and search were unreasonable since the trooper didn't ask whether his passenger was licensed and authorized to drive the car.

"Here, the trooper testified that it is state police procedure to 'tow the vehicle' if the operator's license 'is either suspended or revoked' and the registered owner is not present," Judge Robert Smith wrote. "We hold this to be a reasonable procedure, at least as applied to this case, where no facts were brought to the trooper's attention to show that impounding would be unnecessary."

Smith noted that neither Walker nor his girlfriend asked if she could drive the car or told the officer she had a license or the owner's permission to drive it.

The trooper wasn't required as a constitutional matter to either raise the question or call the owner, he wrote.

According to the court, there have been other inconsistent rulings in similar cases.

The six judges said an impoundment search must be done according to procedures preventing police abuse, while acknowledging the state police written policy was never put into evidence here. "When a car has been lawfully impounded, the reasonable expectation of the person who was driving it that its contents will remain private is significantly diminished," Smith wrote.

State police declined Monday to publicly disclose their written policy.

Erie County District Attorney Frank Sedita said it's difficult for police to locate a car owner at 3:30 a.m. "It's better to impound it. And the law comes down to reasonableness. The court said the actions of the trooper, given the circumstances, were quite reasonable," he said.

Defense attorney Kristin Preve said the court left an open question about when a licensed passenger can drive the car from the traffic stop after speaking up.

"I think it kind of unrealistically put the burden on the citizen, at least with the interaction with police, to challenge the police decision to impound," Preve said. "Then it's up to the citizen to kind of challenge the police at that level."

Walker's passenger was charged later with gun possession, and that charge was dropped, Preve said.